Copyright basics

The purpose of copyright

The purpose of protecting works under copyright law is to promote progress, innovation and artistic endeavours by allowing authors or creators of applicable works to profit from their endeavours by granting them the exclusive right to control that work (with some exceptions for what is deemed to be fair use by national laws).

Without copyright, any artwork or literary work you create could be immediately and freely copied by others. This would mean that there would be very little incentive to spend the effort writing books, making films, creating artwork, etc. as the items you create would have no value.

An international right

International conventions exist to ensure that creative works are protected by national laws across the work.

The most important of these is the Berne Convention that stipulates that copyright must be granted automatically without the need for any "formality"; the TRIPS agreement and WIPO Copyight Treaty follow the same conditions as Berne.

More details can be found on our International Copyright page

When copyright applies.

Copyright is an automatic right that applies whenever an individual creates original literary or artistic work of any type.

To be subject to copyright, a work needs to be fixed in a tangible form (i.e. written down, recorded onto film, etc.).

What is a Literary work?

For the purpose of copyright legislation, any written materials will normally qualify as a literary work.

The written work can be in any format, so whether a work is written by hand or using a computer does not matter. In fact the code for the computer software you use to write your work is also a literary work subject to copyright.

Here are a few examples of literary works:
Books and eBooks (of any type), newspapers and magazines, poetry, lyrics, instruction manuals, computer programs and any software code, written content on a website, written choreography, a scripts for a plays or film etc.

What is an artistic work?

Pretty much any work that has artistic value will qualify. The format or media used to create or record the work does not matter.

Here are a few examples of artistic works:
Music, film, any video or sound recording, photograph, painting, sculpture, logo, etc.

What this means in practice is that any literary or artistic work that you create will automatically be subject to copyright if it is original (not directly copied or adapted from an existing work). Most jurisdictions specify that a work must also exhibits some degree of labour, skill or judgement in its creation, but typically even a very small degree of skill, labour or judgement will qualify (e.g. a simple snapshot on an automatic camera should qualify as some small judgement was needed to frame and time the picture).

What if my work is based on or uses parts of another work?

Provided it is significantly different to the original you work will probably still be subject to copyright. But you need to bear in mind that the underlying work you used still belongs to the existing copyright owner. This means you will only own copyright to the new content you have created as a result of your actions and will probably need permission (i.e. licence) from the owner or the work you used (and may also need to pay a fee or royalties) if you intend to publish the work.

Does copyright law protect an idea?

No. Copyright applies to the recorded work (i.e. a book, a piece of music, a film), not the idea behind it.

For example: If you write an article explaining your ideas for a new political voting system, the article is subject to copyright, the idea is not.

Does copyright protect names or titles?

No. Names, titles, short phrases and colours are not generally considered unique or substantial enough to be covered, but a creation, such as a logo, that combines these elements would be protected as an artistic work.

First owner of copyright

By default when an artistic or literary work is created, the person that created the work will automatically become the copyright owner at that point. That person is typically referred to as the ‘first owner of copyright’.

In cases where a work is created as part of a person’s normal employment then the first owner will typically be the company that employed the person creating the work, (unless that person was working on a freelance basis) .

The above should be viewed as the default situation; any contract or written agreement that stipulates copyright ownership that the author has signed that will naturally take precedence.

Selling or transferring copyright

Copyright is an asset: Just like a car, or a house, or any other asset, copyright may be transferred or sold by the copyright owner to another party. When transferring copyright ownership, it is always advisable to have a written agreement or ‘bill of sale’ stating that ownership is transferred to avoid future confusion or dispute.

It is also important to realise that just because you pay someone to produce something for you does not necessarily mean that you own the copyright, (in the same way that buying a print of a painting or an copy of a song/album does not make you the copyright owner of the original). If you are using a freelance contractor to create something for you, for example to design a logo, or take photos, it is important to be clear who owns what, and whether they intend to transfer copyright to you and at what point; e.g. for a logo designer it is good practice to only hand over copyright to you after you have paid in full for their services.

Rights of the copyright owner

Article 9, point 1 of the Berne convention states:

“Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.”

The following acts can only be carried out by either [a] the copyright owner, or [b] someone who has obtained permission (obtained a licence) from the copyright owner.

• Copy the work.
• Distribute copies of the work to the public.
• Publicly perform, display, transmit or broadcast the work.
• Adapt or translate the work.

In many cases, the author of a work also has the right to be identified as the author and to object to any treatment of the work which would be ‘prejudicial to his honour or reputation’ of the work (even if he is no longer the copyright owner).

Exception to rights of copyright owner

National laws do allow for a few exceptions (what is often called ‘fair use’ or ‘fair dealing’).

Fair use rules differ from country to country, but will normally cover:

• private research and personal educational study,
• news reporting and review,
• format shifting, and
• making a readable/accessible version of a work for people with disabilities who cannot otherwise read/access the work.

These national exceptions to copyright are constrained by the terms of Berne, TRIPS & WCT which make it clear that fair use cannot be used as a blanket excuse for unauthorised use or copying.

Article 13 of TRIPs states:

"Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder."

Article 9, point 2 of the Berne convention states:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.